Deputy President Boyce of the FWC has dismissed an employer’s jurisdictional objection that a dismissal was a case of genuine redundancy after finding that the applicant should have been offered redeployment into a more junior role.

The applicant was employed in the role of Head of Learning and Development, remunerated at $165,000 per year including superannuation. On 7 March 2025, the applicant was notified that he would be dismissed due to redundancy, effective 14 March 2025. It was undisputed that:

• No modern award or enterprise agreement applied to the applicant’s employment.
• The respondent no longer required the applicant’s job to be performed by anyone because of changes in its operational requirements.

On 13 March 2025, the respondent advertised for a Learning and Development Facilitator role (LDF Role), offering a base salary of between $120,000 and $140,000. Although the applicant accepted the LDF Role would be a demotion, he contended redeployment into the LDF Role would have been reasonable. However, he was not offered the LDF Role.

In considering redeployment, the Deputy President:

• Found the LDF Role was an available and vacant position (or role) in the respondent’s enterprise (business) that existed as at the time of the applicant’s termination. The applicant possessed the necessary qualifications, skills, and experience to undertake the work that was available to be performed in the LDF Role at the respondent’s enterprise.
• Accepted that the respondent was intending (hoping) to recruit a candidate at or closer to the $120,000 annual base salary and was interviewing potential candidates at that salary level (being candidates who were also giving indications that they were likely to accept a role with a salary at the $120,000 level).
• Noted the respondent raised legitimate concerns as to why it did not consider redeployment of the applicant into the LDF Role to be in its best business interests. However, the Deputy President considered redeployment does not concern itself with the best person for the role, or the employer’s preference as to whom it wants to fill a vacant role. Whom the employer really wants or prefers to fill a vacant role does not come into the equation if redeployment of a redundant employee is reasonable in all the circumstances. This may result in a redeployed employee not being:
  • the “right fit” for a vacant role, for example, because of attitude or personality issues identified or tolerated while working with the employee in the past, or because the redeployed employee is overqualified for the redeployed role, and will likely become bored in the role or ultimately seek better alternative employment at a higher rate of pay that reflects their qualifications (necessitating the spending of more time and money on further recruitment); or
  • as productive an employee as the preferred type of candidate to whom the employer would have preferred to fill the vacant role.
  • Concluded that while the respondent sought to make a determination as to a vacant role on the basis of what it considered to be in its best interests (in running its business, reducing risk, enhancing performance, and employing persons in post-restructure roles that it considered most suitable), in this case, section 389 of the FW Act prohibited the respondent from doing so without falling afoul of the FW Act’s unfair dismissal jurisdiction.